Benkath Nominees Pty Ltd v The Bah Company Pty Ltd (No 2) [2019] NSWSC 1091

Benkath Nominees Pty Ltd v The Bah Company Pty Ltd (No 2) [2019] NSWSC 1091

A gross sum costs order was appropriate because the costs were not substantial, assessment would likely delay quantification and add to costs, and the second defendant did not oppose such an order. The claimed solicitors' fees required a greater discount than the plaintiff proposed because no assumption could be made that the Queensland solicitors would charge the time-sheet amounts without discount and because both principal and agent costs were of the same order. Counsel's fees were not unreasonable but also required some discount due to the broad brush nature of the process. The proper gross sum was $18,000 plus GST. The costs were not payable forthwith because the plaintiff had...

Jurisdiction
Australia
Judgment Date
23 August 2019
Procedural Posture
Costs Application / Application on the Papers for a Gross Sum Costs Order After Consent Setting Aside of Default Judgment
Outcome
The plaintiff's application for a gross sum costs order was granted in part; the amount was fixed at $18,000 plus GST and the costs were to be paid at the conclusion of the proceedings.
Legal Topics
['gross Sum Costs Order' 'default Judgment' 'costs Payable Forthwith' 'quantification of Costs' 'principal and Agent Solicitors']
['costs' 'civil Procedure'] ['gross Sum Costs Order' 'default Judgment' 'costs Payable Forthwith' 'quantification of Costs' 'principal and Agent Solicitors']

Case Brief

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Procedural Posture

Costs Application / Application on the Papers for a Gross Sum Costs Order After Consent Setting Aside of Default Judgment

Legal Issues

  1. 1 ['Whether it was appropriate to make a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).' 'What gross sum should be fixed for the costs payable by the second defendant to the plaintiff.' 'Whether the costs should be payable forthwith or at the conclusion of the proceedings.']

Ratio Decidendi

A gross sum costs order was appropriate because the costs were not substantial, assessment would likely delay quantification and add to costs, and the second defendant did not oppose such an order. The claimed solicitors' fees required a greater discount than the plaintiff proposed because no assumption could be made that the Queensland solicitors would charge the time-sheet amounts without discount and because both principal and agent costs were of the same order. Counsel's fees were not unreasonable but also required some discount due to the broad brush nature of the process. The proper gross sum was $18,000 plus GST. The costs were not payable forthwith because the plaintiff had...

Court Disposition

The plaintiff's application for a gross sum costs order was granted in part; the amount was fixed at $18,000 plus GST and the costs were to be paid at the conclusion of the proceedings.

Orders

  • ['Fix the amount of the costs which the second defendant is obliged to pay the plaintiff pursuant to order (2) made on 7 May 2019 at $18,000 plus GST.' 'I note that such costs are to be paid at the conclusion of the proceedings.']